Bulimo v Jid Al Futtaim Hypermarkets Limited (Employment and Labour Relations Cause E541 of 2022) [2025] KEELRC 286 (KLR)
The bottom line
#Kenya's Employment Court reinstated a worker's dismissed case, ruling courts should sparingly dismiss suits for non-attendance and can compensate the other side with costs.
What this practically means
#Executive summary
#Key legal issues
#Whether to reinstate a suit dismissed for non-attendance where the claimant blames his former advocate
Reinstatement allowed: the court gave the claimant the benefit of the doubt, found no inordinate unexplained delay, and found he had demonstrated interest in prosecuting his case.
The court presumed that a represented party would be advised on court attendance, but accepted the claimant's uncontradicted evidence of futile attempts to reach his advocate, including finding offices locked. The application, dated 2nd May 2024 and filed 16th May 2024, was held not to be an inordinate unexplained delay. Balancing the parties' prejudice, the claimant deserved a second chance; the respondent's inconvenience was compensable by throw-away costs as per Richard Ncharpi Leiyagu.
Leave for new advocates to come on record
Granted, being unopposed and consistent with Order 9 Rule 9 of the Civil Procedure Rules.
The court noted the prayer was in line with Order 9 Rule 9 and supported by the claimant's sworn statement that he instructed the new firm after failing to obtain updates from his previous advocate. It was unopposed and thus allowed.
Legal principles established
#- Dismissal for want of prosecution is a draconian act which should only be undertaken where absolutely necessary, and reinstatement turns on balancing the prejudice to each party.
- A litigant should not be condemned to lose a hearing because of the mistake of his advocate where the litigant has shown diligence.
- Inconvenience caused to a respondent by a claimant's failure to attend court can be compensated by (throw-away) costs.
Court orders
#- 1.Leave granted to the firm of Kinyua Mbaabu and Company Advocates to come on record for the Applicant/Claimant
- 2.The suit dismissed on 3rd April 2024 for non-attendance reinstated
- 3.Claimant to pay throw-away costs of Kshs. 15,000 to the Respondent within 30 days of the Order
- 4.Parties to take directions on hearing and disposal of the matter on a priority basis; pre-trial on March 10, 2025
- Jurisdiction invoked
- Order 12 Rule 7 of the Civil Procedure Rules (discretion to set aside dismissal of suit), in the interest of justice under Article 159 of the Constitution as invoked by the parties
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bulimo v Jid Al Futtaim Hypermarkets Limited (Employment and Labour Relations Cause E541 of 2022) [2025] KEELRC 286 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/286/eng@2025-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.